Canada refuses to grant access to health care for irregular migrants

The Canadian Health Coalition has learned Canada will not provide access to health care for irregular migrants as recommended by the UN Human Rights Committee.

The recommendation originates from a complaint filed to the UN Human Rights Committee by Nell Toussaint, a woman who lost her status to be in the country and was denied access to health care. Nell argued Canada had violated her rights to life and to non-discrimination.

In a historic decision in 2018, the UN Human Rights Committee agreed with Nell and directed the Canadian government to grant essential health care to irregular migrants. Canada refused, so Nell took Canada to the Ontario Superior Court to get the Canadian government to stop denying irregular migrants access to health care.

Clearing legal hurdles, that court challenge continues today, but without Nell. On January 9, 2023, Nell died at the age of 54, after being denied timely access to health care because of her immigration status, according to her advocates.

Born in Grenada, Nell was raised in Trinidad. She moved to Canada in her twenties, and worked as a cleaner, childcare provider and factory worker. She eventually became an “irregular” migrant, losing her status to be in the country.

When Nell became sick, she was denied health care because Canada does not grant public health care to irregular migrants. She tried to get health insurance from the province of Ontario and the federal government but was denied. Her condition worsened and she suffered irreparable harm from being denied timely health care.

Earlier this year, Nell’s advocates, including the Canadian Health Coalition and human rights organizations called on the Canadian government to accept the most recent recommendations made at Canada’s recent Universal Periodic Review at the UN Human Rights Council: ensure access to health care without discrimination on the basis of immigration status and fully implement the decision of the UN Human Rights Committee in Nell Toussaint v Canada CCPR/C/123/D/2348/2014 (30 August 2018).

In their response to the University Policy Review, Canada stated:

Undocumented migrants in Canada do not qualify for the Interim Federal Health Program (IFHP) or provincial/territorial health insurance. Discretionary IFHP coverage can be provided in exceptional circumstances for individuals in refugee-like situations provided that these individuals are also facing compelling personal and urgent medical circumstances. In addition, individuals who make a claim for refugee protection are eligible for the IFHP until they become a Permanent Resident or are removed.

According to Emilio Rodriguez, Policy Analyst for Refugee and Migrant Rights at Citizens for Public Justice, a member of the Canadian Health Coalition: “To fulfill the requirements of the UPR, and the spirit of the Canada Health Act that calls for access to health care for all residents, federal and provincial governments ought to prioritize two actions. First, to implement regularization pathways that enable irregular migrants and temporary foreign workers to become permanent residents, so they can access essential services like health care. And second, to remove barriers to access public health care coverage for migrant workers and irregular migrants.”

Advocates say all migrants should be able to access full health care coverage on arrival, untied to their employment status or employer, and for the entire duration of their stay in Canada.

Y.Y. Chen, a legal specialist on health care and immigration based at the University of Ottawa, argues that the Canada Health Act needs to end the allowance of waiting periods in provincial health insurance plans for new residents as it undermines their health.

“Insofar as the waiting period is meant to deter so-called ‘health tourism,’ there is currently little evidence that health tourism is of serious concern in Canada,” argues Chen. “All that the waiting period does is delay people’s access to medically necessary care, adding pressure to emergency rooms, and fueling the demand for private health insurance.”

Nell’s battle for health care access for all continues to inspire.

The Canadian Union of Public Employees (CUPE) honoured Nell for Black History Month with a poster of Nell. A framed poster was given to Canada’s first Black speaker of the House of Commons, Greg Fergus, other political party speakers as well as Nell’s niece, Whendean Ghittens, at an all-party reception honouring Nell organized by CUPE and the Canadian Health Coalition in the Speakers Lounge in Parliament on February 13.

CUPE’s Diversity Vice-President representing Black and racialized workers Aubrey Gonsalves spoke at the reception. He said, “There is a fundamental principle in the union movement – an injury to one is an injury to all. Few have embodied that principle as meaningfully as Nell.”

This commentary was first published by the Canadian Health Coalition on March 20, 2024.

Tracy Glynn is the National Director of Projects and Operations for the Canadian Health Coalition.